Case No. EWFC-75

- In relation to the allegation that the husband is married to R7, there are emphatic denials by both of them. 37.The wife says at C5: ‘In 2008 [the husband] informed me that he was going to Bangladesh under the pretence that he will be buying land and building a house there. In fact, the purpose of the trip was to marry the R7. [The husband] and R7 married each other around early 2009 in Bangladesh notwithstanding that [the husband] was still married to me. Although there is no marriage certificate to evidence this and [the husband] has declared on two occasions that he is not married to R7, I have provided Bangladeshi land registration documents. The documents confirm that R7 is the wife of [the husband]. I can confirm that [the husband] introduced his children with R7 by bringing them to my house on several occasions and [the husband] wanted me to accept our marriage as a polygamous marriage with Sume Begum also being his wife at the same time which I refused…[R7, Ahmed Mosthaque and the husband] have deceived the UK immigration authority and now they are seeking to deceive the court. …R7 came to the UK under a sham marriage then divorced from the sham marriage. She knows very well the reasons for the divorce was to cut her official ties with Ahmed Mosthaque so that she can live with H which they continue to do …I can confirm that I confronted Ahmed Mosthaque after I found out from gossip in the Bangladeshi community that H paid him to get R7 to the UK and he admitted to me that his loyalty was with H, as H had paid him a substantial amount of money. Ahmed Mosthaque then used the money he received from H to set up a restaurant in the Midlands.’38.The land registration documents that the wife produced are at A9. The husband is stated in the documents to be R7’s husband on the fourth line of the document at A10. At A35 there is another document relating to the property in Bangladesh; it is dated 26th April 2017 and refers to ‘Shumi Begum…husband Alim Uddin.’39.At G60 there is what is said to be a ‘deed of amendment’ in Bengali which corrects the document at A9. There is a very poor translation of the document at G57. It states, amongst other things: ‘whereas, there's cause cloud in your title, you want to execute a amendment deed for correction of said cloud, on your request I am being agreed for your future enjoyment and possession to execute this deed of amendment do hereby admit and undertake you the recipient of no. 2’s husband’s name has been wrongly written as Alim Uddin , which is really, it's necessary to write your husband name. Really said Ahlim Uddin is not husband of recipient No. 2 Mrs Sumi Begum.’ The wife’s counsel emailed me after the hearing had ended to say that this document was disclosed for the first time on 8th June 2022 to the Applicant’s solicitors as an appendix to R7’s statement notwithstanding the fact that it is dated 11th March 2020 and the Husband said that he had no knowledge of it until this hearing. That is typical of this case.40.The husband’s account about this land in Bangladesh is given in his statement at D9. He says: ‘The land deed was dated 20th May 2010. I was not in Bangladesh on that date and had someone else to act as my power of attorney. The land deed is in fact dealing with the purchase of a piece of land by myself and Sume Begum from Moniruzzaman Chowdury; It is not land transferred to her by way of a dowry. I do not know why I was referred to as her husband. …I sold my half share of the land to Taslima Akther on 5th January 2015 because the [wife] and I needed to obtain funds. My share of the land was sold to enable me to buy a car for the claimant and to pay for items to equip the current matrimonial home , 37 St Michaels Ave …If the land was transferred to Sume Begum by way of dowry, I would not have been in a position to sell the land as I did on 5th January 2015. I produce marked MAU 6 the land document relating to the sale as well as a translation…The events leading up to the purchase of this land were as follows. I had purchased a piece of land in Bangladesh in my sole name, however the claimant did not like the piece of land and it was sold in 2010 to buy another piece of land straight away. The replacement piece of land was more than the sale price and the land was therefore purchased in the joint names of myself and Sume Begum on 20th May 2010.’41.At G50 there is a statement from Sume Begum (R7) who says that she is not the wife of the husband, denies that the husband is the father of her children and gives a similar account in relation to the land in Bangladesh as the husband. 42.The issues about whether the husband and the seventh Respondent are married overlap with the issues relating to whether the husband is the father of R7’s two children and whether he is a part owner of 4 Morland Rd. During the course of this hearing I required the husband to give evidence that was sworn by him on the Koran to be true that: i) he has never been married to R7; ii) he is not the father of X; iii) he is not the father of Y; iv) he has never been in a sexual relationship with R7 and v) he has not been into a bedroom at 4 Morland Rd with R7. When I asked him to give that evidence on the Koran, he was extremely reluctant to do so, suggested that he was not a man of strong faith and was plainly very anxious. Although what is sometimes condensed into the description of ‘demeanour in the witness box’ is a very poor basis for making an assessment of truthfulness, the way a person converses is part of the everyday assessment that everyone makes when analysing what another person says. It is also part of the advice given to juries that, although they may take notes, they may find it particularly helpful to watch the witnesses and listen carefully to what they are saying. The husband did eventually give the evidence that I required of him on the Koran. R7 gave her evidence on the Koran and gave the same confirmation on those five points.43.On two occasions I raised during the hearing whether there was any application for DNA tests to be carried out in relation to the paternity of X and Y. The second time I raised this was just before Sume Begum gave evidence. I asked Mr Meethan, her counsel, whether she understood that there might be an application for such tests to be carried out. Mr Meethan said that she did understand this and would not argue against DNA tests being obtained, if the court required them. At no point has the wife applied for such tests to be carried out or argued that they should be, even though the issue was raised. My own involvement in this issue first arose when I heard the PTR and strike out application on 12th April 2022. I ordered that Sume Begum should file further evidence, stating who the father of both children was and giving such further particulars as she could. She did so (see section G of the bundle for the three statements that she has filed since 12th April 2022).44.I heard a large amount of evidence on this issue and will analyse it further, later in this judgment. In particular, I heard and read the evidence of the wife and the parties’ son, B and I read the statements of the wife’s other witnesses (all of which I refer to below). Because structuring this judgment in a multi-issue case has not easy, I have decided that I should state my conclusions on this issue of the alleged marriage between the husband and Sume Begum at this stage so a reader can have some idea of where that issue is going. 45.As a matter of law, the wife bears the burden of proof on the issues that she raised as to whether the husband has been married to Sume Begum and also as to whether the husband is the father of the two children. It has not been argued by the wife that the legal burden was transferred to the husband to show that the Bangladeshi documents of title, which record the husband as being married to Ms Begum, were wrong; further, on documentation alone, there is the purported amendment that Ms Begum has produced so recently. All parties have argued this case on the basis that the wife bears the burden of proof on these points. 46.In deciding whether the wife has fulfilled that burden, I have to apply the civil standard of proof. Although there were suggestions at times from counsel for the Respondents that there was some form of heightened civil standard that should be applied due the seriousness of the allegation, I hold, as matter of law, that I must apply the civil standard of proof, the balance of probabilities, without any form of enhancement or qualification – see, for instance, the speech of Lord Hoffman in Re B (Children) [2008] UKHL 35; [2008] 2 FLR 141 in which he said: ‘the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not… There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not.’ When applying the civil standard of proof it is important not to compartmentalise the evidence and to maintain an overview of the evidence as a whole. I have done that.47.Although I will examine the evidence on these issues much more, later in this judgment, I wish to record now that I do not consider that it has been proved to the civil standard of proof that the husband has been married to Sume Begum or that he is the father of her children. However, I do find that:i)The husband and Sume Begum have a strong and close association. He treats her as a part of his family. ii)The husband told me that, at the time that the piece of land in Bangladesh was bought, he had no other capital or property anywhere in the world. The very fact that he was prepared to invest his only capital into a piece of land that was jointly owned by Sume Begum, is one example of how close the connection is. There has not been an explanation as to why her name appeared on the documents of title to that land, rather than the name of Ahmed Mosthaque. I was told that the purchase of this land was funded by the husband and Mr Mosthaque only. The husband’s evidence is that the land did not form part of ‘a dowry’ for her. There is no suggestion that it was part of a dowry relating to her 2010 marriage to Mr Mosthaque. iii)The husband has treated X as if he were a member of the husband’s family. On the evidence of the husband and Sume Begum, X is the son of Ms Begum and Ahmed Mosthaque. Unlike Y, X is not said to be child of a sibling of the husband. I find that the husband does refer to X when speaking to the five children of this marriage by the Bengali word ‘bha’i’. I was told that the word ‘bha’i’ might mean cousin or brother. So, when speaking to B, the father has called X B’s bha’i. A point not pursued by the wife’s counsel in evidence is that X is not the cousin or brother of the five children, on the account given by the husband and Sume Begum. The blood relationship arises because Ahmed Mosthaque is the cousin of the husband’s father; I have constructed a genogram of my own to visualise this and it leaves X as only a very distant relative. More importantly than terminology, is the considerable amount of evidence that X is involved in family occasions and is integrated within the husband’s family network. For instance, he attends birthday parties and family meals.iv)The husband has slept at 4 Morland Rd. In particular, when he has needed somewhere to stay when B was with him (e.g. last summer when B was working at the restaurant) the husband and B stayed there.v)The two men that the husband and Ms Begum say are the fathers of the children are closely linked to the husband. Alom Uddin is his brother and Ahmed Mosthaque worked in the restaurant with him. Neither father sees either child often on the evidence that I have heard. 48.The fact that the husband and Ms Begum have not given a full and frank account of the close relationship between them or of the husband’s commitment to the two children has been an additional factor that I have considered very carefully when reaching my decision on the issue of whether they have been married and also when considering the allegations about the paternity of the two children. Both Ms Begum and the husband swore on the Koran to tell me the truth, the whole truth, and nothing but the truth. I have considered very carefully the Lucas direction in relation to lies (R v Lucas [1981] QB 720). I do not consider that they have given a full account of the closeness of their relationship. However, I do not consider that demonstrates that they were married or that he is the father of the children; it could just as well be explained on the basis that, in the context of this case, neither wished to admit to that closeness. 49.B and E have given evidence that they understood that X was their brother. I intend to direct that the wife may tell them that their father and Ms Sume Begum swore on the Koran that their father is not the father of X or Y. The wife may also tell the other children that the husband and Sume Begum gave that sworn evidence. If the husband, Ms Sume Begum or either of those children should ever assert that the husband is the father of the either child, I would expect their evidence in these proceedings to block that assertion. If the wife should seek a transcript of that part of the evidence of Ms Begum and the husband so that it could be referred to the police or any others involved if such an assertion were to be made, she should so apply. As I warned Ms Sume Begum, if she was not telling the truth, she would either be effectively disinheriting her children in relation to the father or risking investigation for an offence of perjury. 50.